From Nuremberg to The Hague - The Future of International Criminal Justice Part 3 ppsx

Criminal Court established in 2002 is a direct dant of the Nuremberg Military Tribunal, as were theEuropean Convention on Human Rights signed in 1950and the genocide convention two years

government, they will have something to look back

on and be warned in advance … [T]he United Statesdoesn’t expect anything out of this, and we areanxious to make a record here that will be a lesson tothe German people.32

The assumption of Western moral superiorityimplicit in the liberal values expressed in theIndictment was accepted as a necessary underpinningfor the construction of a new moral and political order.There were also legal problems raised by the trial Theprovision of evidence was far from ideal Vital material

on the genocide of the Jews only emerged with thecapture of the commandant of Auschwitz, Rudolf Höss,

in March 1946, and his testimony arrived too late to beincluded fully in the trial proceedings The SovietUnion provided unsworn written depositions aboutGerman atrocities in the east, but refused to allowSoviet citizens to be called as witnesses at Nuremberg

In the early summer of 1945, Jackson’s team circulated asecret memorandum making it clear that it was inexpe-dient to wait until all the material for trial had beengathered together, and that the case should rest on ‘the

best evidence readily available’.33 The whole idea of

32 Imperial War Museum, FO 645, Box 162, interrogation of Fritz Wiedemann, taken at Nuremberg, 9 October 1945, pp 22–3.

33 NA II, RG 107, McCloy papers, Box 3, draft Planning Memorandum, 13 May 1945, pp 3–5.

conspiracy did prove difficult to demonstrate, and inthe end three of the defendants, von Papen, Schacht andFritzsche, were found not-guilty on all four counts.Subsequent historical research has confirmed that nosuch thing as a concerted conspiracy existed, though amass of additional evidence on the atrocities of theregime and the widespread complicity of many offi-cials, judges and soldiers in these crimes has confirmedthat, despite all the drawbacks of the trial and of its legalfoundation, the conviction that this was a criminalsystem was in no sense misplaced.

The Nuremberg trials were an experiment There was

a clear international consensus among the victor powersthat the perpetrators of aggression should this time betreated differently by the international community To

be able to conduct such an experiment it was necessary

to have an agreed set of rules of conduct in internationalaffairs and on fundamental issues of human rights Theprecise nature of the crimes associated with the war had

to be defined and given clear legal status.What is strikingabout the summer of 1945 is not that the trials were insome sense arbitrary and in defiance of legal convention,but that so much was achieved in the chaos of post-warEurope in building the foundation for contemporaryinternational law on war crimes, and contemporaryconventions on human rights The International

Criminal Court established in 2002 is a direct dant of the Nuremberg Military Tribunal, as were theEuropean Convention on Human Rights signed in 1950and the genocide convention two years earlier The trialswere without question a political act, agreed at the level

descen-of diplomacy, and motivated by political interests Thechoice of defendants and the definition of the chargeswere arbitrary in the extreme, and rested on endlesswrangles between the prosecution teams and govern-ments of the four Allied states.Yet the final outcome wasless prejudiced and more self-evidently just than theseobjections might imply The trial did not fabricate thereality of the Third Reich and the death of as many asseven million men, women and children murdered orallowed to die by the apparatus of state repression, or thedeaths of many millions more, Germans among them,from the waging of continental war After this grotesquehistorical experience, few could doubt, either then ornow, that the international community required newlegal instruments to cope with its possible recurrence.The fact that in many cases since 1945 it has provedimpossible to prevent or anticipate further violations isnot a consequence of the failure of the Nurembergexperiment, nor of the legal apparatus that it spawned It

is a consequence of a persistent reality in which powerwill always tend to triumph over justice

Issues of complexity, complicity and complementarity: from the Nuremberg trials to the dawn of the new International Criminal Court

 

Introduction

The International Criminal Court came into existence on

1 July 2002 The new Court has jurisdiction over cide, crimes against humanity and war crimes; but theCourt can only try international crimes committed on orafter 1 July 2002.Any national,from any of the more thaneighty states that have ratified the Statute of the Court,can be a potential defendant before the new Court Inaddition, the Court will have jurisdiction over crimescommitted in state parties, even when perpetrated bynationals from states which have not become parties tothe Statute.There are further grounds for jurisdiction but

geno-we need not dgeno-well on them here In this contribution Ishall remain with the theme of the Nuremberg trials anduse these trials as a springboard to explore three concepts

which I think may help us to think about the ways inwhich the new International Criminal Court will operate.The three concepts I wish to explore are: complexity,complicity and complementarity.

Complexity

To understand what I mean by complexity in thiscontext, let us consider some of the fundamental legalinnovations of the Nuremberg judgment delivered bythe International Military Tribunal First, the notion ofindividuals having concrete duties under internationallaw, as opposed to national law, was clearly enunciated,really for the first time, and later accepted by the inter-national community of states Until the Nurembergtrial, war crimes trials had been held at the nationallevel under national military law The internationallaws of war, such as the Hague Convention of 1907,already prohibited resort to certain methods of wagingwar But, in the words of the judgment:

the Hague Convention nowhere designates suchpractices as criminal, nor is any sentence

prescribed, nor any mention made of a court to tryand punish offenders.1

1 Trial of German Major War Criminals (Goering et al.),

International Military Tribunal (Nuremberg), Judgment and

The judges, in a remarkable bout of judicial activism,decided that:

The law of war is to be found not only in treaties,but in the customs and practices of states whichgradually obtained universal recognition, and fromgeneral principles of justice applied by jurists, andpractised by military courts This law is not static,but by continual adaptation follows the needs of achanging world Indeed, in many cases treaties do

no more than express and define for more accuratereference the principles of law already existing.2

In this way the Tribunal held that, even though theinternational treaties they were applying made nomention of criminal law, the international law of warcreated international crimes

The defence had further argued that internationallaw did not apply to individuals but only to states TheTribunal, in a famous passage, rejected this argument aswell In the words of the Tribunal:

Many other authorities could be cited, but enoughhas been said to show that individuals can bepunished for violations of international law.Crimes against international law are committed by

Sentence, 30 September and 1 October 1946 (Cmd 6964, HMSO, London), p 40; the judgment is also reproduced in

(1947) 41 American Journal of International Law 172–333.

2 Goering et al., note 1 above, p 40.

men, not by abstract entities, and only by punishingindividuals who commit such crimes can theprovisions of international law be enforced.3

It was, in retrospect, a very radical moment in thehistory of human rights and humanitarian law Therewas a paradigm shift It was the beginning of a new way

of thinking about international law as going beyondobligations on states and attaching duties to individualsinvolving criminal responsibility Human rights lawwould later come to create duties for individualsbeyond the types of crimes tried at Nuremberg Morespecifically, human rights law developed around theprohibitions on genocide, torture, disappearances andsummary executions, so that it is possible to considerindividual responsibility for these human rights viola-tions, even in the absence of an armed conflict

These developments may seem now eminently

sensi-ble, even unremarkasensi-ble, but the situation is complex for

a lawyer, because the same act and the same provision ofinternational law give rise to multiple responsibilities

We have, first, the responsibility of the state under national law for the violation of its international obliga-tions under a treaty or customary obligation on the laws

inter-of war, and then, secondly, we simultaneously have the

3 Ibid., p 41.

responsibility of the individual for violating the samelaw But the complexity does not end there.

In Nuremberg there was a determination, not only totry individuals, but, at the same trial, to declare certainorganisations to be criminal organisations In this wayindividuals could later be prosecuted and punished forpast membership of such organisations Thus theTribunal declared criminal the leadership corps of theNazi Party, the Gestapo, the SD and the SS.4

In fact, in drawing up the list of defendants atNuremberg, as was explained by Professor Overy in the first lecture in this series, the Prosecutor selected theindividuals according to their connections to theorganisations which were also targeted in the trial.The organisations even had their own counselappointed by the Tribunal to represent them at the trial

As was also mentioned by Professor Overy, it was notonly the political organisations which concerned theprosecutors and judges: there was also a determination

to ensure that German industry, and the industrialistswho had supported the German war effort, were alsoexposed and punished This adds to the complexity

of the proceedings Not only did international law reachstates, government ministers, individual military

4 The SD is the Sicherheitsdeinst des Reichführer SS, and the SS is the Schutzstaffen.

officers, certain political parties and public entities, butthere was also an intention to reach into the privatesector and punish private industrialists and, in a way,the firms themselves.

One of the original indictees at Nuremberg was theindustrialist from the Krupp company, Gustav Kruppvon Bohlen und Halbach He was an old man when thetrial started and he was said by his lawyers to be unfit fortrial due to senile dementia The Tribunal orderedmedical examinations, and, even though he could notrespond to simple commands such as ‘turn your headfrom left to right’, the Tribunal refused to drop himfrom the indictment The British Prosecutor stronglyobjected to any change or delay, citing ‘the interests ofjustice’ On the other hand, the US Prosecutor had beenprepared to substitute Krupp von Bohlen’s son, Alfried,

on the Indictment This is an odd idea at first sight, butthe documents reveal the extent to which justice was to

be served by prosecuting the Krupp firm, rather thanthe individual, even in a situation where the Tribunalonly had jurisdiction over individuals The US answerdrafted by Robert Jackson stated:

Public interests, which transcend all privateconsiderations, require that Krupp von Bohlenshall not be dismissed unless some other

representative of the Krupp armament and

munitions industry be substituted These publicinterests are as follows:

Four generations of the Krupp family haveowned and operated the great armament andmunitions plants which have been the chief source

of Germany’s war supplies For over 130 years thisfamily has been the focus, the symbol, and thebeneficiary of the most sinister forces engaged inmenacing the peace of Europe During the periodbetween the two World Wars, the management ofthese enterprises was chiefly in Defendant Kruppvon Bohlen

It was at all times, however, a Krupp familyenterprise Only a nominal owner himself, VonBohlen’s wife, Bertha Krupp, owned the bulk of thestock About 1937 their son, Alfried Krupp, becameplant manager and was actively associated in thepolicy-making and executive management

thereafter …

To drop Krupp von Bohlen from this casewithout substitution of Alfried, drops from the casethe entire Krupp family, and defeats any effectivejudgment against the German armament makers.5

The British Prosecutor strongly objected to anysubstitution or delay In the words of the ChiefProsecutor:

5 Answer of the United States Prosecution to the Motion on Behalf of Defendant Gustav Krupp von Bohlen, Robert Jackson,

12 November 1945, available at www.yale.edu/lawweb/avalon/ imt/proc/v1-11.htm.

Although in an ordinary case it is undesirable that adefendant should be tried when he is unable tocomprehend the charges made against him, or togive instructions for his defence, there are specialconsiderations which apply to this case.6

According to the British Chief Prosecutor, one of theinterests of justice, referred to in the Charter of theTribunal in the context of trials in the absence of theaccused,7was the public interest in trying the defendantresponsible for the preparation of armaments andusing forced labour from the concentration camps.The Tribunal’s eventual decision was that GustavKrupp could not be tried because of his condition, butthat ‘the charges against him in the Indictment should

be retained for trial thereafter, if the physical andmental condition of the defendant should permit’.8However, his son Alfried was later tried with elevenothers from the Krupp firm by the US Military Tribunal

6 Memorandum of the British Prosecution on the Motion on Behalf of Defendant Gustav Krupp von Bohlen, 12 November

1945, Sir Hartley Shawcross, available at www.yale.edu/lawweb/ avalon/imt/proc/v1-12.htm.

7 Article 12: ‘The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence.’

8 Goering et al., note 1 above, p 2.

in Nuremberg and Alfried received a twelve-yearsentence for plunder and employing prisoners of warand foreign civilians under inhumane conditions inconnection with the conduct of war.

In Alfried Krupp’s case, the defence lawyers suggestedthat international law did not attach to private industri-alists who did not act on behalf of the state They sought

to distinguish the Tribunal’s judgment in Goering et al.,

concerning the responsibility of the individual, byclaiming that these individuals had been state agents:

One must consider, however, that, in the case of theInternational Military Tribunal, the personsinvolved were not private individuals such as thoseappearing in this case, but responsible officials ofthe State, that is such persons and only suchpersons as, by virtue of their office, acted on behalf

of the State It may be a much healthier point ofview not to adhere in all circumstances to the text ofthe provisions of International law, which is, initself, abundantly clear, but rather to follow thespirit of that law, and to state that anyone who acted

on behalf of the state is liable to punishment underthe terms of penal law, because, as an anonymoussubject, the State itself cannot be held responsiblefor the compensation of damage In no

circumstances is it permissible, however, to holdcriminally responsible a private individual, anindustrialist in this case, who has not acted onbehalf of the State, who was not an official or an